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MARTIN v. MOSCOWITZ

August 16, 2005.

COVON MARTIN, a child under the age of 18 years by his mother and guardian Kim Martin; and KIM MARTIN mother and guardian of Covon Martin; Plaintiffs,
v.
RICHARD W. MOSCOWITZ, M.D., Defendant.



The opinion of the court was delivered by: DAVID HURD, District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

  This medical malpractice action was brought pursuant to 28 U.S.C. § 1332 on behalf of the minor plaintiff Covon Martin ("Covon") by his mother plaintiff Kim Martin ("Mrs. Martin"). A jury trial was held November 29, 2004, through December 3, 2004, in Utica, New York. The jury rendered a verdict in favor of defendant Richard W. Moscowitz, M.D. ("Moscowitz") and judgment was entered accordingly. More specifically, the jury found that Moscowitz was not negligent in the care and treatment of Covon's left hip. It also found that there was a lack of informed consent with regard to the left hip, but that consent would still have been given if the appropriate information had been disclosed. The jury found that Moscowitz was not negligent in the care and treatment of Covon's right hip. It then found that although there was a lack of informed consent with regard to the right hip surgery and given appropriate information consent would have been denied, the lack of informed consent was not a substantial factor in causing injuries to Covon.

  Plaintiff now renews his motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50 and moves to set aside the verdict pursuant to Fed.R.Civ.P. 59 with regard to the jury's finding that the operation on Covon's right hip was not a substantial factor in causing unnecessary injuries to him. Defendant opposes. The motion was taken on submission without oral argument.

  II. FACTS

  Covon suffered from slipped capital femoral epiphysis ("SCFE"). Moscowitz first diagnosed SCFE in Covon's left hip, on February 1, 1999, when Covon was thirteen years old. SCFE occurs when the growth plate in the hip (which has not yet solidified) causes the femoral head to slip, causing joint pain. Treatment for this condition consists of surgically placing one or more pins or screws in the hip to prevent additional slippage. Positioning of the pins or screws must be carefully monitored to prevent, or in the case of pin/screw migration to correct, any penetration of the pin/screw beyond the femoral head and into the hip joint. Such penetration causes cartilage damage and can lead to chondrolysis (destruction of the smooth joint surface) and permanent joint malfunction, as well as other adverse effects.

  Two types of hardware are available to fixate the hip in a patient suffering from SCFE. Knowles pins have a pointed end, are solid, and are placed directly without predrilling of the bone. Multiple Knowles pins are required to accomplish a fixation. Fluoroscopic x-rays are used during surgery to direct pin placement and to assure that the Knowles pins are properly placed. That is, x-rays must be reviewed to determine whether the pointed end of any Knowles pins penetrate past the femoral head into the cartilage of the hip joint. Because the x-rays are not three dimensional, it is somewhat difficult to determine whether pin penetration has occurred. Further, post-surgical monitoring of joint range-of-motion and pain is necessary because of the possibility that a Knowles pin penetrated into the joint cartilage, undetected during surgery, or migrated into the joint cartilage post-surgery. Knowles pins were the hardware of choice for SCFE fixation until the middle 1980s, when the cannulated screw was developed.

  The cannulated screw is hollow with a blunt end. Placement of a cannulated screw requires a pre-drilled channel. Because the flat-tipped, broader cannulated screw holds more firmly, only one or two cannulated pins are required to accomplish fixation. Again, fluoroscopic x-rays are used during surgery to facilitate proper pin placement. The flat tip design and more central placement of the cannulated screw in the femoral head permits a greater margin of safety between the end of the screw and the cartilage, resulting in much less possibility of penetration than with the Knowles pin. The wider end also makes penetration of the femoral head more difficult. Additionally, the hollow core of the cannulated screw permits the introduction of dye after placement to assure that no penetration has occurred. If penetration is noted, it can be corrected immediately while the patient is still in surgery. Moreover, because the cannulated screw holds more firmly it is less likely to migrate with the passage of time.

  Moscowitz performed surgery on Covon's left hip on February 17, 1999. Moscowitz used three Knowles pins to fixate Covon's left hip. After the surgery fluorographic x-rays were taken. Moscowitz interpreted the x-rays and determined that there was no pin penetration. Four days later a radiologist reviewed the x-rays and opined that two pins were penetrating.

  At the time of the surgery Moscowitz informed Covon and Mrs. Martin that he should expect mild discomfort for three weeks postoperatively. However, Covon complained of continued pain, and, on May 28, 1999, Moscowitz performed a second operation on Covon's left hip. During this second surgery, Moscowitz removed one pin that was penetrating and backed off three turns on a second pin.

  Thereafter Covon developed pain and limited range-of-motion in his right hip. Moscowitz again diagnosed SCFE. He performed a surgical procedure on August 18, 1999, to stabilize the right femoral head. He used four Knowles pins in the right hip. Covon again complained of pain and limited range of motion beyond the three-week recuperative period Moscowitz predicted. Finally, on September 30, 1999, Moscowitz referred Covon for a second opinion.

  Thereafter, Covon consulted Dr. James Schneider ("Schneider"). Schneider determined that two of the four Knowles pins were penetrating. On November 4, 1999, he surgically removed the offending pins from Covon's right hip. Schneider also has diagnosed Covon with chondrolysis, synovitis, and degenerative arthritis. Covon's condition will worsen over time, and he will need, at the least, a total hip replacement of the right hip. He has been advised to delay having the hip replaced for as long as possible, because a hip replacement will last only ten to fifteen years and therefore would have to be repeated in his lifetime.

  III. STANDARDS

  A. Rule 50 — Judgment as a ...


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